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K. BRUCE, V.C.
and make such landing -places, quays, WEIGHTMAN 0. POWELL. Nov. 5. S"
wharfs, warehouses, buildings, groins, sea Amendment-Bill pro Confesso.
walls, embankments, breakwaters, and other
works, and to put down and remove buoys, A bill was amended under the 65th Order mooring chains, and other matters for renof May 1845, after an order to take the bill dering the pier, &c. useful for the landing pro confesso :- Held, that such amendment and embarking of passengers and goods, destroyed the effect of the order.
and to make a parade, causeways, avenues,
and approaches to the said pier, and to The bill in this suit, which was one for erect and make proper toll-gates and houses foreclosure, was taken pro confesso against for the collectors of tolls to be taken under some of the defendants. After this had the authority of the act, and to erect conbeen done the bill was amended, under the venient baths, bathing-places, and accom65th Order of the 8th of May 1845 (1), modation for bathing machines. The act by an alteration of the date of the mortgage contained the usual powers and provisions deed.
as to shares and works contained in acts of Mr. Bazalgette now submitted the ques- parliament of a similar character. By the tion to the Court, how far the order for 6 & 7 Will. 4. c. cxii. the powers and protaking the bill pro confesso had been affected visions of the last-mentioned act were alterby this amendment?
ed, enlarged, and amended. The company
was registered according to the directions KNIGHT BRUCE, V.C.-I am of opinion contained in the 7 & 8 Vict. c. 110. (the that where an order to make an amendment Act for the Regulation of Joint-Stock Comis obtained after an order to take a bill pro panies). confesso, the order pro confesso is goneman By the 1st section of the 11 & 12 Vict. opinion, however, which I unwillingly en- c. 45, (being the Joint-Stock Companies tertain.
Winding-up Act), after stating the 7 & 8
affairs of Joint-Stock Companies), and the K. Bruce, V.C. | In re THE HERNE BAY 8 & 9 Vict. c. 98. (an Irish Act), and the Dec. 14. S PIER COMPANY.
9 & 10 Vict. c. 28. (being the act to facilitate
the dissolution of certain railway compaJoint-Stock Companies Winding-up Act,
nies) it is enacted " That this act shall apply 11 & 12 Vict. c. 45.
to all companies, corporate or unincorpoA company, incorporated by act of par rate, within the provisions of either of the liament in 1830, authorized to raise capital two acts first hereinbefore mentioned, (inin shares, and empowered to make a pier cluding all companies existing on the 1st and works for landing passengers and goods : day of November 1844, and which shall -Held, not to come within the provisions of have obtained or shall obtain a certificate of the 11 & 12 Vict. c. 45.
registration), and (after mentioning certain
other companies) to all companies, associ. By the 1 Will. 4. c. xxv, a company was ations, and partnerships to be formed after incorporated under the name of “The Herne the passing of this act, whereof the capital Bay Pier Company," and such company or the profits is or are divided or to be was authorized to raise 50,0001. among divided into shares, and such shares transthemselves to be divided into 1,000 shares, ferable without the express consent of all and was empowered to erect and make a the co-partners." By the 5th section it pier or jetty, to be used for the embarking is enacted, " That it shall be lawful for and disembarking, landing and shipping of any person who shall be or claim to be passengers and of horses, cattle, and other a contributory of a company to present live stock, and lading and unlading of ships a petition to the Lord Chancellor, or to and vessels, under such regulations as the the Master of the Rolls, in a summary company should direct, and also to erect way, for the dissolution and winding up, (1) Ord. Can. 308 ; 14 Law J. Rep. (N.s.) Chanc.
or for the winding up of the affairs of such 290.
company in any of the following cases (that
argument, though I am of opinion that it is not expedient to interfere upon petition.
The petition must be dismissed, without costs.
Costs- Pauper Costs - Dismissal of Bill by Plaintiff
The plaintiff having obtained an order to dismiss his bill as against a pauper defendant,
it was held, that the defendant was entitled to pauper costs only, and not to full costs.
is to say).” The act then proceeded to enumerate the different cases under which a petition might be presented, the last of which is thus expressed :-"or if any other matter or thing shall be shewn, which, in the opinion of the Court, shall render it just and equitable that the company should be dissolved."
The petition in this case, which was headed “ In the matter of the 11 f. 12 Vict. c. 45," and was presented by Mr. George Burge, one of the shareholders of the Herne Bay Pier Company, stated that the pier and works had been made, but that the affairs of the company were very much embarrassed; and prayed that the debts of the company might be provided for, and that the affairs of the company might be wound up under the direction of the Court, and that the company might be dissolved.
Mr. Swanston and Mr. Goodeve, for the petition, contended, that under the general scope and language of the three acts (7 & 8 Vict. c. 110, 7 & 8 Vict. c. 111, and the 11 & 12 Vict. c. 45), all companies, whether incorporated by act of parliament or not, in which the capital was divided into shares, which were transferable without the express consent of the co-partners, came within the provisions of those acts; and that, therefore, according to the proper construction of the acts taken together, it ought to be held that the company in question might be dissolved under the 11 & 12 Vict. c. 45.
Mr. Bacon and Mr. Roundell Palmer, for the company.
This was a petition by the plaintiff in the cause, for liberty to except to the Master's report. The defendant had been admitted to sue in forma pauperis; and the plaintiff bad obtained an order to dismiss his bill with pauper costs only. The matter was referred to the Master, who had taxed the costs as pauper costs, and an objection was now raised on behalf of the defendant that the costs ought to have been allowed as dives costs, and not as pauper costs.
Mr. Rolt and Mr. Eddis appeared in support of the petition; and citedStafford v. Higginbotham, 2 Keen, 147;
s. c. 6 Law J. Rep. (N.s.) Chanc. 314. Roberts v. Lloyd, 2 Beav. 376. Mr. James, contrà, urged that the plaintiff ought to be directed to pay pauper costs only. No others had been incurred in the suit after the order had been obtained by the defendant giving him leave to sue in forma pauperis. The following cases were cited :
Rattray v. George, 16 Ves. 233.
Knight BRUCE, V.C.-I am of opinion that the jurisdiction, upon petition, given by the act 11 & 12 Vict. c. 45. ought not to be exercised, except with regard to the companies clearly and beyond all doubt coming within the meaning of that statute. I think that this company by no means answers that description—at all events, the question is one, at least, of difficulty ; and I must, therefore, dismiss the petition.
The Vice CHANCELLOR said, no case could be stronger than the present, where the plaintiff had himself dismissed his bill, thereby acknowledging that he had no case. He thought that, under these circumstances, the plaintiff ought to pay full costs.
Mr. Bacon then contended that the petition ought to be dismissed, with costs.
The matter was afterwards mentioned to the Lord Chancellor, who varied the order, and held that the defendant was entitled to pauper costs only, and not to full costs.
KNIGHT BRUCE, V.C.-I cannot dismiss the petition with costs. The question of construction is one that admits of considerable
M.R. Nov. 20.]
ROBINSON V. ROBINSON. Conversion — Real Securities — Tenant for Life and Remainder-men— TrusteesProfit arising from improper Investment.
A testator, by his will, gave his residuary personal estate to trustees, upon trust, with all convenient speed, to collect, get in, or dispose of the same, or to continue the same, in or upon any of the parliamentary stocks, or on real securities, or to alter or vary the same, as should be found expedient, and to pay the interest and dividends thereof to his son for life, and after his decease to pay and transfer the stocks, funds, and securities upon which the same should be invested amongst his son's children equally. A considerable part of the testator's estate, consisting of London Dock and Bank stock, and Sewers bonds, was allowed by the trustees (who were the testator's executors ) to remain unconverted for several years after the testator's death, and eventually a loss accrued to the estate from the sale of the Bank stock and Sewers bonds, but a gain arose from the sale of the London Dock stock; certain turnpike road bonds, part of the testator's residuary estate, were never converted by the trustees at all. The payment of the amount due on the Sewers bonds was secured by the rates and assessments, which the Commissioners were authorized by acts of parliament to levy, and the payment of the amount due in respect of the turnpike road bonds was secured on the toll houses and tolls payable thereat:-Held, that neither the Sewers bonds nor the road bonds were real securities within the meaning of the testator's will; that the loss which arose on the sale of the Sewers bonds and Bank stock could not be set off against the gain that arose from the sale of the London Dock stock, and that the tenant for life was entitled to 31. per cent. per annum, and no more, which would have been the amount payable to him if the conversion had been made within one year from the testator's death.
continue the same in or upon any of the parliamentary stocks or funds of Great Britain, or on real securities in England, at interest, or to vary, alter, and transpose such stocks, funds, or securities, for others of a like nature, when, and so often as it should be expedient, and pay the interest and dividends of the stocks, funds, and securities unto his son, Augustin Robinson, during the term of his natural life, and after his decease, upon trust, to pay and transfer the said testator's residuary estate, and the stocks, funds, and securities in which the same should be invested unto all and every the children of his said son, who should live to attain the age of twenty-one years, or be married, in equal shares and proportions if more than one. A power was given by the will to the trustees to apply such part of the interest and dividends of the residuary personal estate as they should think proper for the use, benefit, and support of the son until he should attain the age of twenty-four years, or in case of his death, leaving issue, then to the use, benefit, and support of his son's children, until they should attain that age, and also to appoint new trustees; and it contained also the usual proviso for the indemnity of the trustees.
The testator died on the 20th of July 1837, and his will was proved on the 11th of August following by the executors. The testator's personal estate consisted (inter alia) of a considerable sum of 31. per cent. consolidated Bank annuities, 5,4681. 15s. Bank stock, 5,1821. 18s. 3d, London Dock stock, 6,0001. due to the testator from the trustees of the Surrey and Sussex roads, and 5,0001. due to the testator from the Commissioners of Sewers of Surrey and Kent. On the 2nd of December 1837, two bonds for the sum of 5001. each from the Surrey and Sussex roads trustees, being part of the 6,0001, like bonds, were paid off. On the 23rd of November 1846, another bond for 500l. from the Surrey and Sussex roads trustees, at the rate of 5l. per cent. per annum, being further part of the 6,0001. like bonds, was paid off, and the sum of 5001, cash, the proceeds, was invested by the surviving executors, Mary Robinson and T. W. Meller, in the purchase of consolidated Bank annuities. The sum of 5,4681. 15s. Bank stock was sold on the 18th of
Matthew Robinson, by his will, gave the residue of his personal estate unto his wife Mary Robinson, Charles Druce, and T. W. Meller (who were also the testator's executors), upon trust, with all convenient speed to collect, get in, and dispose thereof, or to
New SERIES, XVII.-Cuanc.
July 1845, at the rate of 2101. 10s., and produced the clear sum of 11,5111. 2s. 4d. cash, which was the same day invested by the three executors in the purchase of consolidated Bank annuities. The sum of 5,1821. 188. 3d, London Dock stock was sold on the 25th of July 1845, and the clear proceeds forth with invested in the purchase of 31. per cent. consolidated Bank annuities, On the 1st of August 1845, A. Robinson, the testator's son, purchased the debt of 5,000l., due from the Commissioners of Sewers of Surrey and Kent, for the sum of 5,0001, cash, the clear proceeds of which were on the same day invested by the three executors in the purchase of 31. per cent. consolidated Bank annuities.
After the above transactions the testator's residuary estate consisted of a very considerable sum of 31. per cent. consoli. dated Bank annuities standing in the name of the testator, a large sum of like annuities and reduced annuities, standing in the names of the executors, and the sum of 4,5001. Surrey and Sussex road bonds.
Augustin Robinson attained the age of twenty-four years on the 3rd of November 1840, and on the 25th of that month the executors accounted to him for the balance remaining in their hands of the whole of the income received in respect of the testator's residuary personal estate. After that time A. Robinson received the income of the residuary personal estate, as well converted as not converted, by virtue of powers of attorney, for that purpose executed by the executors. It appeared that in the sales of the 5,4681. 153. Bank stock, and 5,000l. Sewers bonds respectively, a loss accrued to the testator's estate ; but in the sale of the 5,1821. 18s. 3d. London Dock stock a considerable gain accrued to the testator's estate, far exceeding in amount the loss accruing from the sale of the 5,4681. 158. Bank stock, and 5,0001. Sewers bonds. The income of the tenant for life, arising from the unconverted parts of the testator's personal estate, very considerably exceeded the income that would have accrued to him if the same had been sold and converted by the executors, and the proceeds invested in parliamentary stocks, within one year from the testator's death. In January 1846, A. Robinson was advised by counsel that the Surrey and Sussex road bonds were real
securities, and could be held by the trustees under the terms of the will, but that the Bank stock, London Dock stock, and Sewers bonds were not securities that could be held thereunder, and that they ought, therefore, to have been converted into money, and invested in some of the public funds or on real securities in England, at the expiration of one year from the testator's death; and counsel further stated their opinion to be that the tenant for life was entitled to the whole income for the first year after the said testator's death, and to all the income that had been received in respect of the security of the road bonds; but that he was not entitled to receive the larger income, which arose from the remaining portion of the residue being continued on the old security, and that he was liable to repay the surplus income, and the counsel thought that in a hostile suit the trustees would be charged with all the stock actually purchased by them with monies arising from the realization of the old securities, and also where the old securities did not realize sufficient to purchase as much go. vernment stock as could have been purchased with the proceeds thereof, at the expiration of one year from the death of the testator, that the trustees would be ordered to make good the deficiency, and that the trustees and tenant for life would also be ordered to repay the surplus income received by the tenant for life beyond what he was entitled to receive. Subsequently, the tenant for life made good the loss arising to the residuary estate from the omission to convert in due time the unconverted parts thereof, and had also restored, by means of a purchase of an adequate sum of 31. per cent. consolidated Bank annuities, the excess of income to which he was advised he was not entitled. The tenant for life, whilst before the Master, insisted that, inasmuch as the trustees of the will were thereby authorized to invest or continue the resi. duary personal estate of the testator, not only in or upon any of the parliamentary stocks or funds of Great Britain, but also on real securities in England, at interest, he was entitled, in taking the accounts in respect of such excess of income, to have credit given to him for interest after the rate of 41. per cent. per annum, at the least, on the amount of money which could have
been produced, in case the sums outstanding on such improper securities, had been got in and converted into money, at the expiration of one year from the death of the said testator.
The suit was instituted on behalf of three of the children of the tenant for life, who were infants, against the tenant for life, the two surviving executors and trustees, and the representatives of the deceased executor and trustee, seeking the due administration of the testator's estate, and a declaration of the rights of all parties in the clear residue.
The Surrey and Sussex road bonds, after reciting the two acts of parliament relating to the road, and passed in the 42 and 58 Geo. 3, proceeded in form as fol. lows :-“We, seven of the trustees for putting the said acts in execution, in consideration of the sum of 1. to the treasurer of the said roads in hand paid by A. B. of - in - Esq., do hereby grant and assign unto the said his executors, administrators and assigns, such proportion of the tolls arising by virtue of the said acts, and of the toll-gates, or turnpikes, and toll-houses for collecting the same, as the said sum of l. doth or shall bear to the whole sum advanced, or to be advanced, on the credit thereof, to be had and holden from the day of the date hereof for and during the continuance of the said acts, unless the said sum ofl., with interest at the rate of 51. for 1001, for a year shall sooner be repaid and satisfied. In witness whereof we have hereto set our hands and seals this day of in the year of our Lord " By the 28th section of the act, 42 Geo. 3, it was enacted, as follows: "That it shall be lawful for the said trustees, or any seven or more of them, to borrow and take up at interest such sum or sums of money as they shall think fit, upon the credit of the tolls arising by virtue of this act, and by writing under their hands and seals to mortgage, demise, and assign over the said tolls, or any part thereof, and the turnpikes and toll-houses for collecting the same to any person or persons for any term during the continuance of this act, as the security for the repayment of the several sums that shall be so borrowed, with the interest thereof, such mortgage or assignment to be in the words therein mentioned."
The Surrey and Kent sewers bonds, after
reciting the proposition to lend monies to the Commissioners of Sewers, under and by virtue of the powers given by certain acts of parliament passed in the 49th, 50th, and 53rd years of King George the Third, proceeded in form as follows:
"And whereas the said Commissioners having accepted the said proposals, the said - did, on the day of now last past, by order of the said Commissioners pay into the hands of Thomas Gaitskell, Esq., the expenditor general for the time being, the sum of 1. Now we, whose hands and seals are hereunto set and subscribed, being six of the Commissioners of Sewers for the limits aforesaid, do hereby order and direct the said Thomas Gaitskell, and any and every expenditor general for the time being to the Commissioners of Sewers for the limits aforesaid, out of any monies coming to his hands by virtue of any rate or assessment, rates or assessments, now made or hereafter to be made by the Commissioners of Sewers for the limits aforesaid, under or by virtue of the said several acts of parliament, or otherwise howsoever, to pay or cause to be paid unto the said his executors, administrators or assigns, the sum ofl., with interest for the same at and after the rate of 51. per cent. per annum, to be computed from the
day of — last, on the days and times and in manner and form hereinafter mentioned, without further warrant in this behalf, that is to say, the sum of 1. on the day of , and the like sum of l. on the day of in each and every year during so long a time as the said sum of 1. shall remain due and owing unto the said his executors, administrators or assigns, and the said principal sum, and all interest due thereon at the rate aforesaid, on the 29th day of
, which will be in the year of our Lord - Given under our hands this
day of A.D. By an act of parliament, made and passed in the 23 Hen. 8. c. 5, intituled, “the Bill of Sewers, with a new proviso," and which act was made perpetual by an act made and passed in the 3 & 4 Edw. 6. c. 8, power was given to Commissioners of Sewers to be appointed throughout the realm, to tax, assess, charge, distrain, and punish the persons, to be contributing to the charges by